I just heard this morning that Tesco have again been denied permission to open an off licence in Smithfield, at the sign, indeed, of the White Swan. As anyone who’s had a pint with me over the past two years well knows, this is the fourth time now we’ve beaten them at the planning game. I’m so happy I’ve given the workers the morning off. As I’m enjoying Lightning Hopkins up here on Benburb Street I gaze out the window towards the White Swan and the gallows beyond and promise to myself ‘there will be no more executions in Smithfield!’
Now you will mind the time I was well vexed at having to leave the Complex. I was annoyed, and then came the trip to the courts and all that palarver. But perhaps I’d really been more exercised, indeed fascinated, by Tesco’s blundersome arrogance and astonishing sense of entitlement. All the more so as these have nurtured a remarkable ineptitude on the part of the company when it comes to engaging with planning in this country. It was to become for me an urban nightmare of retail topography that only Joyce himself could possibly have foreseen: how the fuck to cross the city without passing a multinational supermarket or anodyne convenience store.
Worthy of consideration is the fact that these particular units are owned by us, yup, through NAMA. Not the loans, the actual concrete blocks and glass: the very spaces themselves. And all theatres, as you know, have ghosts. As you’ll read below, if you have the patience, NAMA was raised (and quite correctly so) in our submission, yet it was not considered an issue by the Board’s inspector, or even mentioned in passing.
We considered this an issue of national importance in terms of planning jurisprudence and as such, had requested an Oral Hearing, i.e. a public hearing of the case where we’d have the opportunity to call expert witnesses and cross examine Tesco and their planning consultants. Alas, we were denied our day in court. This of course would have provided a chance to put NAMA in the dock regarding the cultural and social dividend it’s supposed to be dispensing. They didn’t have to give an explanation for the refusal.
Whatever. It’s a result. If anyone wants a punt we could go for a judicial review on the NAMA issue as much as the Board’s decision to come down against the previous cultural uses of the spaces. Here there was no consideration given to the DCC cultural heritage framework plan for the area, or indeed to the cultural provisions of the previous HARP scheme. It remains to be seen whether Tesco will move in regardless (as they have permission to amalgamate the units) and open an illegal off licence (as they effectively did on Thomas Street). Or will they get out now after spending several hundred thousand on planning application fees, spurious alcohol surveys and consultants’ fees? And strangely enough in the media, why is it they’ve received little negative coverage on this one?
Anyways, I’ll probably post later in some more detail the practicalities of taking on Tesco and indeed winning. Every time. Thanks to everyone in Smithfield, Stoneybatter, Prussia Street, Grangegorman and North King Street who helped with submissions to DCC and the Board. It was a real community effort. DCC had to listen to you; you actually did all the work for them. It didn’t take any input from your local representatives, although they will deny this! You demonstrated in planning terms why you didn’t want Tesco in Smithfield and the planners had to agree with you. When it came to the Board… well who knows!
Below is the final observation made to An Bord Pleanála from this office. Below that again is a link to the inspector’s report. I’ll see if I can post a link to Tesco’s alcohol survey of Smithfield if you really want a good laugh.
Planning and Development Acts 2000-2011
Third party observation to An Bord Pleanála
PL29N.240820 Re. application for amalgamation and change of use, alcohol sales and change of use of Ground Floor Units 18 and 19, Block C, Smithfield Market Development, Smithfield, Dublin 7
Planning register: 2461/1
26 August 2012
1.1 This is regrettably the second involvement of this office in a planning appeal regarding Tesco’s plans to open an off licence and convenience store in Block C on Smithfield. We beg to Board’s forbearance in having to deal with the same substantive issues again and apologise in advance if some of our previous observations may seem familiar.
1.2 Dublin City Council has now refused Tesco permission to operate an off licence at this location on two occasions. On the initial application (4176/10), the refusal was brought to the Board (PL29N.239124) which confirmed the planning authority’s decision regarding the provision of an off licence from Block C. Despite the appellant’s claims to the contrary in the appeal documentation, there have been no substantive changes regarding the supply of alcohol in the Smithfield area. The situation regarding public order offences resulting from alcohol abuse in the area has actually deteriorated, if Gardaí on the beat and local residents are to be believed.
1.3 This ostensibly minor planning issue in an historic backwater of Dublin is possibly becoming something of an awkward distraction for the multinational Tesco plc and indeed its shareholders. As far as this office is aware, none of latter lives within a 1km radius of Block C; it is further unlikely that any of them reside in an area known to suffer the social effects of readily available cut-price alcohol. The company’s shareholders are undoubtedly feeling the effects of the collapse of global capital; in the UK at any rate, they are watching their former customers taking their business to their cheaper competitors in droves. Their UK price cuts at Christmas have not worked and the company is rapidly loosing its market share.
It is difficult to translate the UK experience to this jurisdiction, where Tesco is not obliged to divulge its profits. A price-cutting campaign launched by the company in 2010-11 was shown to be fallacious, based on inaccurate price bases and it continues to deny that it illegally levies ‘hello money’ on new suppliers, where anecdotal evidence would strongly suggest otherwise. The company claims to support Irish suppliers but no independently audited documentation has ever been supplied to verify this. In the meanwhile many products which ostensibly appear to be of Irish origin are, on closer inspection, actually produced in the UK. The company nonetheless persists here in attacking small, traditional business neighbourhoods, while its off licences and convenience stores continue to spring up in some of the more unlikely quarters of the city.
In the short term, this has led to the several closures of more established small supermarkets, shops providing local employment and selling local produce, families and businesses which could not compete against a multinational importing beer and spirits from the UK and retailing in this jurisdiction at below net cost. In the long term, considering the continuing success of their fundamentally anti-competitive trajectory, Tesco is likely to become the largest grocery retailer in the city.
The extent to which the company can prosper in this market is a function of how well they can compete with larger retailers such as Aldi and Superquinn and Tesco can now be demonstrated to target both the smaller and the larger retailers in terms of where its new stores are being located. This we believe is a significant issue when it comes to a sustainable planning strategy for the city; it is certainly an issue which, we contend, falls well within the remit of the Board as the present appeal is being considered.
In relation to the planning of its expansion throughout the city, Tesco are no strangers to the Board (or indeed the Courts Service). Temple Bar was something of a debacle for the company, forcing a rare public outing into the courts. Tesco nonetheless succeeded, if somewhat petulantly, in opening an off licence in the very centre of an area known internationally for its drinking culture. The situation regarding non-compliance on Thomas Street in relation to the sale of alcohol must have been a further embarrassment, if indeed Tesco does embarrassment. Nonetheless, references to favourable decisions and imaginary precedents from An Bord Pleanála litter this appeal like toys thrown from a pram.
1.4 The Smithfield community has expressed its strong disapproval of Tesco’s threatened arrival in their neighbourhood. Submissions have been made to the planning authority which, we trust, are contained in the planning file requested by the Board on 13 July.
We note the planning authority’s reasoned refusal of an off licence on both previous occasions and further note the authority’s continuing support for the area’s cultural designation in conditioning a cultural requirement. This requirement is set out in Condition 3, which is also subject to this appeal. A similar condition was dismissed by the Board as being unreasonable on the previous outing, however, this is an issue we will raise again as we contend it is directly relevant to the appeal. We hope we can persuade the Board that cultural institutions can bring more to a community than an off licence can, and that this must be considered an issue of planning.
1.5 In this regard, this office is coordinating this submission on behalf of the people of the area and those local businesses (including this one) which made initial submissions on the proposed development. We trust the Board will support the decision of the planning authority and denyTesco permission to operate an off licence in Smithfield. We further hope to persuade the Board that Condition 3 of the grant from DCC is a reasonable one, in the context of Smithfield’s long being a recognised cultural hub, with Block C being specifically located within a development which benefited from substantial tax breaks without delivering on the cultural obligations contained in the initial grant of permission.
We must further contend that the only means by which Tesco can be denied the opportunity, legal or otherwise, to flood Smithfield with cut price alcohol is to overturn the planning authority’s decision to permit the amalgamation of the two units in question.
2 Zoning and amenity
2.1 We note that the Z5 zoning for the area has been established ‘to consolidate and facilitate the development of the central area, and to reinforce and strengthen and protect its civic design character and dignity’. We will return to the concept of ‘dignity’ as employed in the Development Plan.
2.2 The observation submitted by An Taisce to the planning authority recognised the presence of Fresh and contended that the provision of another supermarket on Smithfield would reduce the use mix of the area and was thus in conflict with the Z5 zoning objective. This seeks to ‘sustain life within the centre of the city through intensive mixed-use development. This strategy is to provide a dynamic mix of uses, which interact with each other, creates a sense of community and which sustains the vitality of the inner city both by day and night.’
There is no ‘dynamic mix of uses’ proposed here. Smithfield already has a supermarket and there are several more in the immediate neighbourhood. Moreover, a 10-minute walk will bring the Smithfield consumer to four stores operated by the appellant (Thomas Street, Prussia Street, Parnell Street and Jervis Street). Indeed, not only is there a superabundance of Tesco stores in this area, it can be reasonably maintained that there is a sufficiency of this retailer’s stores throughout the city as a whole.
2.3 The principal objection recorded by most of those who submitted observations to the planning authority relates to the provision of an off licence on the premises. It is entirely apposite here to consider the use of the term ‘dignity’ when considering the appeal in relation to the zoning of the area. Utilising a normative definition of the word, we ask the Board how indeed dignity can be brought to this area by a successful grant of permission on appeal.
The operation of a supermarket which relies on the provision of cut-price and below-cost alcohol to remain in profit, will undoubtedly have the effect of attracting those wishing to purchase cheap alcohol. The Board is doubtless aware of the specific situation regarding street drinkers in the Smithfield area and the presence of the nearby Capuchin Centre which caters for a vulnerable population of up to 1000 individuals every day, many of whom suffer alcohol-related problems. What beneficial effect will a new Tesco have on the dignity of these people’s lives? What ‘need’ is being demonstrated for another off licence within an area the appellants have themselves in their ‘Alcohol Sales Study’ demonstrated to be adequately served by such facilities?
We recognise nonetheless that in planning parlance, ‘dignity’ can be defined beyond the materiality of individual human experience, that it can relate to the built environment, one that has been significantly redesigned by the planning authority, at some expense. We feel it is entirely inappropriate to attract even more street drinkers to the newly landscaped square: the opening of a cut-price off licence here can only detract from the residential amenity of those living on the square or indeed those tourists staying in the hotels and hostels in the area.
2.4 Where Tesco may well argue that they are servicing local needs and demands, there has been little evidence supplied by the company to support this fact. In fact, all available evidence suggests that the only needs and demands being serviced here are Tesco’s. We thus note that the residential amenity of the residents living above the proposed convenience store has not been considered by the appellant. Deliveries will have to come via the narrow Haymarket Way to the rear of the premises, yet there has been no mention made in either of the applications of the noise and nuisance this will cause during the early hours of the morning. Although daylight delivery hours are specified in the planning condition, is it not our experience that the planning authority has enforcement officers available at the end of a phone in the early hours of the morning. The company is, in any case, well able to pay any fines incurred.
A contemptuous attitude extends to the statutory planning authorities and permeates the appeal document. The adjudication of off licences is not, in the opinion of the multinational, an issue for the planning authorities or indeed An Bord Pleanála. It is up to the ‘police’ and the courts to adjudicate on such matters, where the subject communities and the emergency services are left to pick up the pieces. We strongly reject this self-serving presumption on the part of the appellant and defer to the planning acts and the Dublin City Development Plan.
3 Off licence sales
3.1 Despite the proximity of several other stores in the immediate area trading as Tesco, there still appears to be an overriding need for the company to open another store in Smithfield. The reason of course is one centered on profitability, subject to a high turnover in alcohol sales. As is unfortunately obvious, there exists a vulnerable population of street drinkers who converge on Smithfield on a daily basis. A cut-price off licence here is in nobody’s interests apart from Tesco’s. Tesco has of course been granted permission to open a convenience store here, however such permission is of little use to the company if there is no accompanying provision for alcohol sales.
3.2 On two occasions the company has been asked by the planning authority to provide a compelling case for another off licence in the locality defined within a 1km radius. We note this information has been brought again before the Board in the form of an ‘Alcohol Sales Study’ and we concur with the local authority planner’s opinion of the questionable accuracy of the 1000m circle defining the area and the rather partial identification of each of the off licences and part off licences trading within. This attempt at statistical cartography, however misleading, is in our opinion but a minor detail and there are undeniably more serious difficulties relating to the research as presented by the company.
The bulk of the appeal document reiterates the findings of the survey adding more and more statistics to, by this stage, a rather tired narrative of ‘need’ and ‘demand’. As has been pointed out before, such data is worthless without the provision of verifiable comperanda and it is regretful that the company did not take the opportunity between the appeals to bring more focus to their compelling case.
The study has been submitted on behalf of the appellant by GVA Planning; unfortunately the author of the document has not been credited and it is thus difficult to assess his/her academic competency in undertaking and presenting such research, most of which lacks adequate bibliographical citation. This office admits to a certain bemusement on reading Section 2.3 Existing Demand, where several recent statistical surveys are latched onto in order to demonstrate a dearth of off licences throughout the subject area. We were particularly taken with the ‘robust assessment’ of the average spend of c. €3.5m on alcohol products by the residents, the working population(!) and tourists within the Smithfield local catchment. Why indeed should Tesco be denied its cut?
In any case irrespective of inaccuracies and omissions and, as such, lacking any comperanda, the information presented on the map and in the survey is actually open to any of several interpretations. One interpretation could suggest that the map actually depicts an adequate sufficiency, that there are already enough off licences in the area to service the thirstiest of populations. Conversely, there are those who would well argue that there are too few off licences in the area. Like Goldilocks, Tesco claims to have it ‘just right’ and we are now asked to believe that the provision of just one more off licence in Block C will strongly contribute to the ‘vitality and vibrancy of the Square’. Perhaps indeed it might, but not in any way that residents or visitors to Smithfield may appreciate.
3.3 The 1km circle is in any event a random notation, one which does not directly address concentrations of populations beyond its bounds. In fairness, one could reasonably expect other alcohol retailers located just outside the circle to be represented on the map. In this instance we note the absence of Tesco on Prussia Street and indeed Tesco on Parnell Street, both barely several metres from the given circumference. Needless to say, there are more off licences in the Stoneybatter/NCR area which are within reasonable footfall of the proposed development on Smithfield, where the Smithfield catchment area can itself be reasonably extended through Grangegorman and onto the NCR.
3.4 Perhaps however the greatest flaw on the map is the absence of any graphical representation of the distribution of licensed premises within the circle. Here alcoholic beverages are available even early in the morning, a function of the area’s market designation under the licensing legislation. Indeed, some of the better pubs in the city are located in the Smithfield/Markets area and they bring an ordered vibrancy to the locality at nights.
We are conducting our own research in this regard and hope to be able to provide the Board with our own map once fieldwork has been completed.
3.5 The arrival at a ‘compelling case’ to the satisfaction of the planning authority is admittedly difficult, as there is little enough guidance given in the Development Plan as to the statistical function of the data collected. On another level, and in the light of recent events in the Phoenix Park, the very fact that the provision of cheap alcohol by Tesco is reduced to some ill-defined metric of ‘need’ is a depressing indictment of ill-considered attitudes towards alcohol consumption in our society.
3.6 What is however abundantly evident from the ‘Alcohol Sales Study’ is that there has been no attempt to consider other aspects of alcohol sales in the subject area. The proposed off licence is to be located directly across from the already over-burdened Juvenile Courts, which deal on a day to day basis with the more real consequences of alcohol abuse. We find it inappropriate in the extreme that David Potter of Savills Commercial (Ireland) Limited, in his capacity as Fixed Charge Receiver, can countenance a property, ostensibly in the ownership of the citizens of this State, being put to such retail use at this location.
We further note Mr Potter’s letter of 12 April last which states that ‘the temporary occupation of these units by a non-retail use had no beneficial impact on the lettability of the units’. The former occupant, the Complex theatre was of enormous benefit to the local community and brought constant footfall and life to Smithfield. We are dismayed that the Complex has had to seek alternative accommodation on foot of this application.
3.7 Perhaps the most ‘compelling case’ being put before the Board is the submission of Dr Niamh Collins, a consultant in emergency medicine who has lived for several years above the proposed off licence. Dr Collins has eloquently presented the medical evidence relating to the irresponsible and anti-social retail practices of companies such as Tesco in this regard.
3.8 In purely planning terms, and irrespective of the appellant’s claims to the contrary, the provision of yet another off licence in the area is clearly in contravention of Policy RD10, where it is the policy of Dublin City Council ‘to prohibit the expansion of off licences or part off licences except in areas where a compelling case can be made’. There is simply no compelling case.
4 Cultural considerations
4.1 It was with initial alarm that we noted the planning authority’s insistence on imposing Condition 3. This had been an issue during the previous appeal, where the Board’s Inspector had deferred to the recommendations contained within the Development Management Guidelines for Planning Authorities. Here, ‘the basic criteria for assessing whether a condition should be imposed is if it is necessary, relevant to planning, relevant to the development to be permitted, enforceable, precise and reasonable’.
We note the Inspector was of the opinion that the condition referred to was ‘difficult to enforce’ as opposed it its being unreasonable (the argument put forward by the third party). There was no substantive reason given as to why the condition was ‘difficult to enforce’, and this office would contend that the condition regarding the permitted hours of delivery is in fact considerably more difficult to enforce.
4.2 The planning authority has thus consistently considered its obligation to that previous cultural use for the units in question and Condition 4 of the 4176/10 permission was entirely appropriate in this instance. Similar conditions have been imposed under applications 4830/06 and 4867/06, establishing an intention to preserve the cultural usage of the spaces under discussion.
4.3 The City Council has now again imposed a cultural condition on the proposed development, the planner’s report noting that Smithfield is not an Architectural Conservation Area (as stated in the An Bord Pleanála report), but that rather it is within a Conservation Area and a designated ‘Cultural Cluster’. This fact is upheld in the Development Plan and a little research will demonstrate the Council’s original intention for the area to become a new cultural hub, as supported by the Historic Area Rejuvenation Project IAP as far back as 1996. The cultural component of the HARP scheme was put together on the basis of the area’s becoming a genuine artistic quarter, an alternative to the boozy excesses of Temple Bar.
There has thus always been an under-riding understanding in the local authority’s approach to the planning and development of the area that the mistakes of Temple Bar would not be repeated and that Smithfield would support and sustain a network of several cultural spaces, anchored on the National Museum site at Collins Barracks. This issue was raised on a submission regarding the previous application for the site given by the Complex to the Arts, Culture, Leisure & Youth Affairs Strategic Policy Committee on 6 July 2011.
We understand Dublin City Council was mandated by the elected representatives as an action of this presentation to prepare a framework plan for the arts in the area. We hope the findings of this plan will, on this occasion, be taken on board in the adjudication of this application and contend that at the very least, any application for retail use within a space designated for cultural use is premature until such time as the plan has been ratified by the Council.
4.5 This office cannot comment on the suitability of Tesco as a patron of the arts. We can only support the City Council’s perseverance in attempting to deliver the cultural quarter promised in the HARP Scheme by means of the planning process and request the Board to take cognisance of the fact that the subject units form part of the cultural designation of the area as supported by the City Development Plan.
5.1 Tesco has undeniably been extremely successful in flooding Dublin with its retail outlets and off licences. The choice it offers the city’s consumers is real enough in terms of the provision of cheap alcohol, yet in areas such as Ringsend, Pearse Street and Camden Street consumer choice has actually been diluted where the appearance of a Tesco outlet has resulted in the closure of the opposition. There is little doubt that this will also be the case in Smithfield, where Tesco’s stated provision of 16 precarious jobs will not compensate for the job losses in the other stores which will face closure.
5.2 This is however of secondary concern. Our principal objection to this proposal has always been grounded on the company’s strategy regarding the sale of cut price alcohol and the quantifiable effects such a strategy has on the residential amenities of the areas the company targets. Tesco has failed on two occasions to provide a compelling case to the planning authority, an opinion which has been upheld by the Board on the previous appeal. A rather spurious contention that the closure of one local outlet (as a direct result of the imminent arrival of a retailer supplying cut price alcohol) is balanced by the company’s inaccurate appraisal of the number of outlets already in existence. In any event, this cannot be considered a substantive issue in its own right.
5.3 We thus believe that the Board will support the contention of this office, Dublin City Council and more importantly the opinions of the citizens of Smithfield, Stoneybatter and the Markets, that Tesco’s proposals to open an off licence and convenience store here are against the provisions of the Dublin City Development Plan where the appellant has failed yet again to provide a compelling case. As such, the proposal is contrary to the sustainable development of the area.
5.4 Furthermore, as Tesco has already demonstrated its contempt for the planning laws in relation to the illegal sale of alcohol in its Thomas Street outlet, we contend that the only way to deny the company the opportunity to retail cut price alcohol in Smithfield is to overturn the planning authority’s decision to grant permission for the change of use of Units 18 (permitted shop) and 19 (permitted restaurant) to provide for a single retail unit.
5.5 We submit the statutory fee of €50 for making this observation and an acknowledgement from Dublin City Council of our initial submission.
Link to An Bord Pleanála inspector’s report: http://www.pleanala.ie/casenum/240820.htm